Government Contract Bid Protest - Delaware

PROTEST OF SOLICITATION / AWARD

State of Delaware

Before the Office of Management and Budget / Government Support Services

CASE CAPTION

BEFORE THE OFFICE OF MANAGEMENT AND BUDGET
GOVERNMENT SUPPORT SERVICES
STATE OF DELAWARE

In the Matter of the Protest of:

Protester: [________________________________]

Concerning:

Solicitation/Contract No.: [________________________________]

Issuing Agency: [________________________________]

Protest No. (if assigned): [________________________________]

Date Filed: [__/__/____]

PROTEST, REQUEST FOR STAY OF AWARD, AND CLAIM FOR COSTS

TABLE OF CONTENTS

1. Introduction and Jurisdictional Statement
2. Parties
3. Timeliness of Protest
4. Statement of Relevant Facts
5. Grounds of Protest
6. Legal Argument
7. Request for Stay of Award/Performance
8. Requested Remedies
9. Representations and Certifications
10. Exhibits
11. Certificate of Service
12. Signature Block

I. INTRODUCTION AND JURISDICTIONAL STATEMENT

1. This Protest is filed pursuant to the Delaware Procurement Code, 29 Del. C. Chapter 69, and the contracting standard operating procedures ("SOPs") established by Government Support Services ("GSS") within the Office of Management and Budget ("OMB").

2. Under 29 Del. C. § 6911, GSS is responsible for the procurement of materials, equipment, and nonprofessional services for covered state agencies. GSS has authority to establish procurement procedures, including protest procedures.

3. The purpose of the Delaware Procurement Code, as stated in 29 Del. C. § 6901, is "to create a single forum in which the procurement needs of state agencies and the technical and legal requirements of the procurement process are addressed simultaneously," and to ensure fair and open competition for state contracts.

4. This Protest concerns Solicitation/Contract No. [________________________________] (the "Solicitation"), issued by [________________________________] (the "Agency") for [________________________________] (brief description of procurement).

II. PARTIES

A. Protester

Legal Name: [________________________________]

Entity Type: ☐ Corporation ☐ LLC ☐ Partnership ☐ Sole Proprietorship ☐ Other: [____]

State of Organization: [________________________________]

Principal Business Address: [________________________________]

City, State, ZIP: [________________________________]

Delaware Business License No.: [________________________________]

Authorized Representative: [________________________________]

Title: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

B. Contracting Agency

Agency Name: [________________________________]

Procurement Contact: [________________________________]

Address: [________________________________]

City, State, ZIP: [________________________________]

C. Government Support Services (if centrally managed procurement)

GSS Contact: [________________________________]

Address: 100 Enterprise Place, Suite 4, Dover, DE 19901

D. Awardee (if known)

Name: [________________________________]

Address: [________________________________]

III. TIMELINESS OF PROTEST

A. Applicable Deadline

This Protest is timely filed in accordance with the applicable GSS SOPs and protest procedures established under 29 Del. C. Chapter 69.

☐ Pre-award protest filed before the submission deadline or within the prescribed period for challenging solicitation terms.

☐ Post-award protest filed within the deadline established by the applicable protest procedures after the Protester knew or should have known of the facts giving rise to the Protest.

B. Triggering Event

The Protester first knew or should have known of the facts giving rise to this Protest on [__/__/____], when: [________________________________]

C. Type of Protest

☐ Pre-award protest
☐ Post-award protest
☐ Other: [________________________________]

IV. STATEMENT OF RELEVANT FACTS

1. On [__/__/____], the Agency (or GSS on behalf of the Agency) issued the Solicitation for [________________________________].

2. The Solicitation was published on the Delaware Bid Solicitation Directory (bidcondocs.delaware.gov) as required by the Delaware Procurement Code and GSS SOPs.

3. The Solicitation established the following evaluation criteria:
   - [________________________________] - [____]%
   - [________________________________] - [____]%
   - [________________________________] - [____]%
   - Price/Cost - [____]%

4. On [__/__/____], the Protester timely submitted its proposal/bid.

5. [________________________________] (additional facts)

6. On [__/__/____], the Agency [announced its intent to award / awarded] the contract to [________________________________] (the "Awardee").

7. On [__/__/____], the Protester [received notification / requested a debriefing / learned of the facts giving rise to this Protest].

8. [________________________________] (additional relevant facts)

V. GROUNDS OF PROTEST

The Protester asserts the following grounds:

Ground 1: [Title]

☐ Evaluation Errors: The Agency's evaluation deviated from the stated evaluation criteria and/or the Delaware Procurement Code.

Factual Basis: [________________________________]

Applicable Authority: 29 Del. C. § 6924 (competitive sealed proposals); GSS SOPs.

Ground 2: [Title]

☐ Failure to Award to Lowest Responsible Bidder: Under 29 Del. C. § 6923(d), contracts awarded through competitive sealed bidding shall be awarded to the lowest responsible and responsive bidder. The Agency failed to comply.

Factual Basis: [________________________________]

Ground 3: [Title]

☐ Unequal Treatment of Offerors: The Agency treated bidders/offerors unequally during the procurement process.

Factual Basis: [________________________________]

Ground 4: [Title]

☐ Specification Deficiency: The specifications were unduly restrictive, ambiguous, or drafted to favor a particular vendor.

Factual Basis: [________________________________]

Applicable Authority: 29 Del. C. § 6922 (specifications).

Ground 5: [Title]

☐ Procedural Violations: The Agency failed to follow mandatory procurement procedures established by the Delaware Procurement Code or GSS SOPs.

Factual Basis: [________________________________]

Additional Grounds:

☐ Organizational conflict of interest
☐ Improper sole-source or emergency procurement
☐ Failure to comply with minority/women-owned business enterprise requirements
☐ Violation of 29 Del. C. § 6904 (ethical standards)
☐ Other: [________________________________]

VI. LEGAL ARGUMENT

A. Delaware Procurement Framework

The Delaware Procurement Code, 29 Del. C. Chapter 69, establishes the legal framework for state procurement. Under 29 Del. C. § 6923, competitive sealed bidding is the preferred method of procurement, and awards must be made to the lowest responsible and responsive bidder. For competitive sealed proposals under 29 Del. C. § 6924, the award must be made to the responsible offeror whose proposal is determined to be the most advantageous to the State.

B. Competitive Prejudice

The Protester was competitively prejudiced because: [________________________________]

C. Detailed Legal Analysis

[________________________________]

VII. REQUEST FOR STAY OF AWARD/PERFORMANCE

The Protester requests that GSS / the Agency stay the award or performance of the contract pending resolution of this Protest because:

☐ There is a reasonable likelihood that the Protest will be sustained
☐ The stay will not harm the public interest
☐ The balance of equities favors a stay
☐ Immediate performance is not essential

Supporting Facts: [________________________________]

VIII. REQUESTED REMEDIES

The Protester respectfully requests:

1. ☐ Sustain the Protest;

2. ☐ Stay the award or performance pending resolution;

3. ☐ Direct corrective action, including:
   - ☐ Re-evaluation of proposals/bids
   - ☐ Re-solicitation
   - ☐ Cancellation of the improper award
   - ☐ Award to the Protester
   - ☐ Other: [________________________________]

4. ☐ Award reasonable costs to the extent authorized;

5. ☐ Other relief as the procurement authority deems just and appropriate.

IX. REPRESENTATIONS AND CERTIFICATIONS

9.1 Accuracy. The Protester certifies that the statements herein are true and correct.

9.2 No Pending Actions. No other action concerning this procurement is pending.

9.3 Standing. The Protester is an actual or prospective bidder with a direct economic interest.

9.4 Ethics Compliance. The Protester certifies compliance with 29 Del. C. § 6904 (ethical standards in public contracting).

9.5 Good Faith. This Protest is filed in good faith.

X. EXHIBITS

☐ Exhibit A - Solicitation and Amendments
☐ Exhibit B - Protester's Proposal/Bid (Redacted)
☐ Exhibit C - Award Notification
☐ Exhibit D - Debriefing Materials
☐ Exhibit E - Correspondence with Agency/GSS
☐ Exhibit F - Declaration of [________________________________]
☐ Exhibit G - [________________________________]

XI. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of this Protest was served on:

GSS / Procurement Official:
Name: [________________________________]
Method: ☐ Email ☐ Hand Delivery ☐ Certified Mail

Agency Contact:
Name: [________________________________]
Method: ☐ Email ☐ Hand Delivery ☐ Certified Mail

Awardee (if known):
Name: [________________________________]
Method: ☐ Email ☐ Hand Delivery ☐ Certified Mail

___________________________________
[Name]

XII. SIGNATURE BLOCK

PROTESTER:

[________________________________]

By: ___________________________________

Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

COUNSEL FOR PROTESTER (if represented):

[________________________________]

By: ___________________________________

[________________________________], Esq.
Delaware Bar No. [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

DELAWARE-SPECIFIC PROCEDURAL NOTES

• Delaware procurement is primarily administered through Government Support Services (GSS) within the Office of Management and Budget (OMB) under 29 Del. C. Chapter 69.
• Covered state agencies must procure materials, equipment, and nonprofessional services through GSS statewide contracts. 29 Del. C. § 6902(6).
• Protest procedures are established by GSS contracting SOPs. Verify the current applicable protest deadlines and procedures with GSS before filing.
• Under 29 Del. C. § 6930, the Agency head may waive procurement requirements in emergencies or when it is determined to be in the best interest of the State.
• Judicial review of final procurement decisions may be available through the Superior Court under the Delaware Administrative Procedures Act, 29 Del. C. § 10142, or through a direct action for declaratory or injunctive relief.
• The Delaware Procurement Code includes ethical standards at 29 Del. C. § 6904, which prohibit conflicts of interest and improper influence in procurement.

SOURCES AND REFERENCES

1. Delaware Procurement Code, 29 Del. C. Chapter 69
2. 29 Del. C. § 6901 - Purpose of procurement code
3. 29 Del. C. § 6902 - Definitions (covered agencies)
4. 29 Del. C. § 6904 - Ethical standards in public contracting
5. 29 Del. C. § 6911 - GSS authority and responsibilities
6. 29 Del. C. § 6922 - Specifications
7. 29 Del. C. § 6923 - Competitive sealed bidding (award to lowest responsible bidder)
8. 29 Del. C. § 6924 - Competitive sealed proposals (most advantageous proposal)
9. 29 Del. C. § 6930 - Emergency procurement waivers
10. 29 Del. C. § 10142 - Judicial review under Delaware APA
11. GSS Contracting Standard Operating Procedures
12. Delaware Bid Solicitation Directory (bidcondocs.delaware.gov)

This template is designed for use in the State of Delaware under the Delaware Procurement Code, 29 Del. C. Chapter 69. Protest procedures are established by GSS SOPs and may vary. This template should be customized and reviewed by a qualified Delaware attorney before filing. Laws and regulations may change; verify all citations before use.